Open Debate

The FLBA hosted a panel discussion on ‘Publicity in Family Proceedings’ today. It was moderated by Mr Justice Coleridge, and the panel was comprised of Mrs Justice Eleanor King, Anthony Hayden QC, Joshua Rozenberg and Dr Julia Brophy. It was a really interesting discussion. There was some consensus on a number of points: that greater openness was desirable, that the first round of reforms introducing media access had been a bit of a damp squib and that the proposed reforms contained in the Children, Schools & Families Bill 2009 were an impenetrable mess.

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But it’s an enormous and complex topic to cover in an hour, and there was an aspect of this debate that I wish had been explored more thoroughly. Much of the discussion was based on the supposed dichotomy between journalists (reputable) and bloggers (boo, hiss) and the assumption that all things bad are represented by the internet bogeyman. The Bill it seems, will remove (inadvertently perhaps?) the power of the court to permit access to persons other than ‘accredited media representatives’, which theoretically at least can presently be used to permit access to the responsible blogger without the benefit of a press card. It is of course imperative that whatever the rules permit to be heard, disclosed or published, safeguards should be in place to promote responsible reporting and minimise unbalanced coverage. But, in much the same way that many held misplaced expectations that the press would be a conduit for educating the public at large about the day to day work of the family justice system (is it really a surprise that they don’t report a range of cases across the board but select only those with the power to sell papers?), there seems to be a misplaced perception that we can or should draw some bright line between the ‘journalists’ and ‘the bloggers’.

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First: Journalists and bloggers alike publish, via their different media, information for their own purposes. They none of them serve the interests of the family justice system in educating or informing the public: although their interests may coincide from time to time they are not coterminous.

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Second: Much journalism in the so-called ‘reputable’ press is scandalously unbalanced, sloppy, and sensationalist. A good portion of it is probably in breach of the restrictions on publishing material likely to identify a child. Similarly, an enormous amount of poorly written, inappropriate, biased and frankly crackers material is published by bloggers on the internet on this topic, often by disgruntled litigants or campaigners. The worst blogs are more extreme than the worst newspaper reports, but the worst newspaper reports probably reach far many more pairs of eyes than any single truly dodgy blog. But in each category there are a number of responsible, thorough and professional writers who can be relied on to report in an appropriate way. As Joshua Rozenberg pointed out journalism is not a ‘Profession’ with a regulatory body. A press card is not necessarily a marker of good quality, and media access rules based on it draw a somewhat arbitrary line. Even Joshua Rozenberg, prize winning legal reporter, was at one point on the wrong side of that line because he was freelance and had no press card. And by way of a further example Charon QC, a notable blawger (law blogger) does have a press card.

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Third: In practice a certain category of individuals who publish via blogs or websites do not consider themselves contrained by the rules in the same way that professional journalists (and their employers) may do. They may post the detail of their own cases, photographs of their children, names, and catalogues of injustice (perceived or real), the names of experts or social workers and the contents of their reports. They either do not know that the rules apply or they do not care. And the sharing of inappropriate information on sites like facebook is now endemic. Whilst I am hugely uncomfortable about some of the material I have found publicly available on the internet, tortured rules trying to prevent what is already happening – and frankly will continue to happen – is a distraction. If there is material published on the internet that is inappropriate or contrary to the rules we should give teeth to the existing prohibitions on such publications and enforce those breaches rather than creating broad a new set of rules which will then go unheeded by the rogue bloggers just like the last set. We are in danger of throwing out the baby with the bath water, because 

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Fourth: The drive to reform in this area has multiple aims – to increase public confidence in the system by way of greater transparency and by educating the public about what happens inside the family courts. The penny seems to be dropping that newspapers aren’t going to do this job. Even Camilla Cavendish (self appointed champion of the open courts campaign) appears to have got bored reporting about family courts (nothing since 9 July) And frankly they don’t have the reach. The internet is a hotbed of debate about family law, about the court system, about CAFCASS, about social services, lawyers, judges…We can’t simply pretend this debate is not happening if we expect to increase public confidence in the system. What we ought to be doing is contributing to and informing these debates, using the internet and the blogosphere rather than consigning it to the naughty corner. If you want to reach the cynics, the confused and the disillusioned put it out there on the net. Mr Justice Coleridge cracked a joke today about lawyers not even knowing how to switch on their computers. We have got to get switched on to this and stop hiding behind our bundles.

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I’m not advocating the disclosure of court reports or documents to either bloggers or ‘real’ journalists. I’m not advocating access of the public to the courts. We have a responsibility to children – and to families in general – to protect their privacy and their wellbeing (I’ve posted about this before). And I don’t profess to offer an opinion on how we do this in practice – it is a really difficult one to crack. But I do think that the lack of public confidence in our family courts is something we need urgently to tackle, and that we need to be more wide ranging and more creative in our thinking. Dr Brophy proposed that we needed to get more involved in communities. She’s right on that, but unfortunately all she could suggest was more Court Open Days, which are positive but are simply not going to have any significant impact on the scale of the problem.

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One further point. I think its unhelpful to talk about ‘PR’ as one of the panellists did today. This is not about opening up the courts in order to demonstrate that the family courts are great. It’s not just an exercise in validating ourselves as professionals. It’s about people understanding what happens and why, and of being able to get an understanding of how robust and fair the system is – but also an understanding of where and why that system falls down. I don’t think its about putting the court system in a positive light. I think it’s about being honest and about engaging in dialogue. We all know that although there is much to be proud of the system is in fact far from perfect, although this may be in different aspects or for different reasons than are perceived by the unhappy ex-litigant. To pretend the family justice system is not struggling with significant problems would be disingenuous and transparent in the wrong sense of the word.

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Following on from today’s discussion I’d like to prompt a debate amongst professionals working in the family justice system about this – lawyers, judges, social workers, court staff. Right here on this blog. And of course anyone who reads this blog is welcome to chip in.

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How should we harness the power of the internet and how can we engage meaningfully with the public through the  internet and bloggers, web fora etc? How can those of us working in the family court system help in increasing the quality, reliability and balance of the information available to those whose main source of information on this topic is the internet? How can we use the internet to enhance our own understanding of what the public think of the system and why?

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Who will start me off with a comment?

7 thoughts on “Open Debate

  1. […] story doesn’t really make any sense until you read it in conjunction with this post by Lucy Reed, family law barrister and blawger (sic) writing in her Pink Tape blog. Lucy reveals that part of […]

  2. Don’t know who checks in with this blog but if anyone does then the name may ring a bell (to say least) anyway i have faulty computer equipment so can’t trawl the web at pres, and even email is hard work.

    point, all the argument dotted about the media web etc was first developed in my various statements (self developed) to the CoA in 2006 and since i have lobbied the many journalist to follow and have through various channels ensured that the topic remains live. And more important that journalists and MPs accept the implications of various positions in the REAL world. The Times may try to take credit (Frances Gibb, who takes my calls, accused me of blackmailing her – i hold my hands up if telling them – she and Camilla, i’ll see they lose their jobs if they don’t write properly on the issue – and they DID – after my threat). Anyway, the fact is that best part of half of what appeared in the Times over the last year is culled out of my various correspondence with them. I can prove. I have a range of folk who feed in to me and feed back out what i work out with the likes of Dr Michael Pelling. We are not stupid. And we DO have the answers. Straw won’t talk to us, indeed virtually everyone is decidedly neurotic in how they dip in and out of this issue.
    Even my 10 year old daughter can see that the 5 year discussion on this issue is absurd and dysfunctional – a national embarrassment. Bentham who she can now quote said it all yet we seem unable of moving forward despite everyone agreeing we must.

    We have the answers.

    Control freak modern Britain of course can’t handle the “amateur” (hardly – i’m educated and have dedicated 5 yrs of my life to this – on and off full time).

    This issue was developed (Munby etc) to placate the rightful protest of those campaigning for reform. We have certainly the answers ready if anyone would for a second deal with us like the ordinary, sensible, not-looking-for-limelight ( I am a VERY private chap), people we are who have thought through all of what this is about as it is US who are affected.

    This issue is really at heart about the fact that the largely rather retrograde (as it is a Cinderella profession – not forced to modernise) bumbling dinosaurs who are stuck in a Victorian mindset, establishment, who define Family Law, need to let go. In other words class. An old fashioned effete ruling class is refusing to give up to a realistic modern more democratic approach.
    It doesn’t need any law degree or any inside knowledge – you just look at the body language of the poor souls – even at the top, stuck working in family law – they are ground down by a dinosaur, bullying, entirely intellectually devoid, mindset that is foisted on them from an unaccountable effete dictatorship.

    (I can PROVE – even just a review of my own tussles in the media – radio stuff, shows that supposedly senior people from the legal profession simply cannot be bothered to read their own professional material such as FLR)

    Give me and a few others some office space, minor funding, and a proper voice, and we will find the answers needed.

    And don’t forget that our friends have indeed taught themselves the art of webmaster supremacy – fact – so we are never now going to be silenced.
    SC
    simonclayton@post.com
    070 7979 7190

  3. Concerned parent

    I’ll take this opportunity to say what a disgrace it is for Simon to have involved his daughter in his endeavour to achieve “openness” in family proceedings and point out that there is now very little that we, the public, do not know about [****name edited out by familoo***].

    I sincerely hope that Simon keeps a close eye on his daughter now that he has placed her in a vulnerable position by providing the public with her name, full date of birth, address, name of school, interests and numerous photos [****details of where such information can be found edited out by familoo****].

  4. I wonder what harm Concerned Parent thinks will befall Simon’s daughter by being named. Indeed, I wonder what harm CP thinks she (he?) can escape by remaining anonymous her(him?)self. The fact is that there isn’t a shred of evidence to show that any child has been harmed by being named or protected by remaining anonymous. Quite the reverse. I’m sure Simon’s [***child’s name edited out***] can run rings around CP with suitable quotations from Bentham and others.

    I suspect, Simon, that the last thing Lucy wants is a truly open debate; after all, she intends to limit it to ‘a debate amongst professionals working in the family justice system about this – lawyers, judges, social workers, court staff.’ No jounalists, no academics, no politicians, and certainly noone who has actually been through the system, such as a (cover your ears) parent or an articulate child.

    And just look at the censorship she wants to impose on the system, ‘It is of course imperative that whatever the rules permit to be heard, disclosed or published, safeguards should be in place to promote responsible reporting and minimise unbalanced coverage.’ We must only let the public hear what they need to hear.

    Public confidence in the family justice system has been successfully undermined thanks to the work of tireless campaigners such as Simon Clayton and Michael Pelling. That is as it should be: this is not a system in which the public should place any confidence. If confidence is to be restored (and it was never really confidence, merely ignorance) then it will not be achieved by cliquey, exclusive ‘debate’ behind closed doors. It can only be achieved through constructive, wholesale reform.

    As Simon says, we have the answers. It isn’t rocket science, as they say. Even the Family Court Bench Book regards family law as ‘not intellectually particularly demanding’. Just as well, considering all those third class law degrees from third class universities.

    Curiously many others have the answers too. Sandra Davies (of Mishcon de Reya) made proposals recently almost identical to those in the Fathers 4 Justice Blueprint of 2003. They are echoed by very diverse quarters, from the feminist academic Liz Trinder to the excellent charity Centre for Separated Families. We all know what needs to be done and how to achieve it. Unfortunately the first step is to take contact and residence disputes out of the legal arena, and that is where we immediately lose the support of the ‘lawyers, judges, social workers, and court staff’ who are so dependent on perpetuating acrimonious and adversarial dispute.

    • I don’t want to limit who can participate in this debate at all. I think you misunderstand me. The list of professionals I have referred to are those who have traditionally not engaged in debate on open fora like this. I am trying to promote debate between those professionals and those of the rest of us (yourselves included) who are a bit more savvy with communicating via the internet, blogs etc. and who have in many cases fundamentally different views and experiences of the family justice system. Which is why your comments are being approved and published. I think its important that all participants can understand the arguments for and against openness, and can think constructively about how we actually achieve it in practice.

      And again I think you misinterpret my position by suggesting somehow that in arguing for the promotion of responsible reporting and the minimisation of unbalanced coverage I am anti-free speech or advocating that only pro-courts reporting can be permitted. It should be clear from other posts on this blog that I see the absolute importance of reporting in both educating people as to the positive work done by the courts AND exposing the failures or injustices that occur. Surely you are not arguing for irresponsible reporting? I think we are actually not so very far apart on this. The conundrum is how we balance privacy with the need for openness and I don’t profess to have the answers.

      If I wanted a cliquey, exclusive ‘debate’ behind closed doors this post would not exist, and nor would the string of comments forming beneath it. There may be others who do want such an exclusive debate but I am not one of them.

      Nick, maybe you can explain in your next comment how you propose to take contact and residence disputes out of the legal arena? I’ve no doubt that mediation and other innovative schemes may be better ways for disputes to be resolved or worked through, but there will I think always be some cases (hopefully fewer and fewer) where someone has to take decisions that parents cannot or will not take.

      I’d like to think that we can actually have discussion rather than simply hurling insults and making sweeping generalisations.

  5. If I misunderstood the original reason for the proposed debate – and it seems I may have done – I am very sorry and I apologise unreservedly.

    I’m certainly not arguing for irresponsible reporting, though I‘m not sure how you distinguish or discriminate. If the press are determined to publish something irresponsible (and they often do) I don’t really see how you stop them – better that than some form of ministry-approved accreditation.

    Back to the debate. I accept that ultimately there needs to be some form of access to the courts when all else has failed, and that any form of alternative dispute resolution has to be governed by legislation, but it does seem to me that contact and residence disputes are not essentially legal disputes, and that a legal solution is often not appropriate. I also believe that enabling courts to make these decisions has the effect of ‘infantilising’ parents and rendering them unable to make even the most basic decisions. Self-help fora are full of parents going to court over the choice of one state school over another or whether to have a child vaccinated. Parents need to take responsibility again for their children.

    I suggested in the earlier posting that there was a similarity between very diverse individuals and organisations about how family law could be changed. Here are some possible areas for discussion:

    Sandra Davies of Mishcon de Reya (Parental Separation, Children and the Courts, http://www.mishcon.com/assets/managed/docs/downloads/doc_2395/policy-briefing-paper-parental-separation-children-and-the-courts.pdf)recently proposed ‘Conflict Clinics’ which would provide parents with ‘therapeutic input’ and would be paid for by diverting funds from Legal Aid and from CAFCASS. She also controversially recommended increasing the cost of an application from £175 to £1,000, and changing the 1989 Children Act so that such an application could only be made on the provision of a ‘certificate of failure of Family Therapy’.

    In 2003 Fathers 4 Justice suggested in our Blueprint for Family Law in the 21st Century a new Family Support Service which would provide ‘high-quality state provision of mediation services’, funded by scrapping CAFCASS and utilising re-trained CAFCASS staff. These would implement what we called the ParentShare Scheme which was a gender-neutral way of re-evaluating family relationships, involving a new language of family law in which terms like ‘contact’ and ‘residence’ became redundant, to be replaced by ‘parenting time’. Parents would agree ParentShare Plans either directly, or through a mandatory session with an advisor/mediator. Only where these broke down would cases be transferred to a new Family Magistrates Service.

    In November 2007, in her report into in-court conciliation (Trinder, L. & Kellett, J., The longer-term outcomes of in-court conciliation, Ministry of Justice Research Series 15/07, University of East Anglia, November 2007, http://www.justice.gov.uk/docs/211107.pdf) Liz Trinder advised, ‘Rather than concentrating resources within the family justice system an alternative approach would be to develop comprehensive services for families in the community, including relationship-orientated dispute resolution services. Courts could then become very much a last resort when all else has failed or for cases involving allegations of harm.’ This view is echoed by Nicholas Crichton who said in 2006, ‘I do not see a difficulty in saying to people, “If you want access to a judge in a courtroom, which is a very expensive facility and not necessarily the best facility to try to resolve your problems, you have first of all to try one of a range of options to see if we can find another solution to your problem.” ‘

    Lastly, no list of alternatives to in-court litigation should be complete without a mention of the ill-fated Early Interventions project devised in 2003 by the New Approaches to Contact family policy review agency (NATC). This project would have introduced a fully articulated, fully-costed, fully-detailed and fully-endorsed, model of dispute resolution based on eight years of protracted research and discussion, including analysis of functioning and successful schemes such as the Norwegian system and the ‘Florida model’. It was endorsed by the Department for Constitutional Affairs Minister, the President of the Family Division, the High Court Family judiciary, the Family Law Bar Association, the chairman of the Solicitors Family Law Association (now Resolution), the Coalition for Equal Parenting, Fathers Direct, Families Need Fathers (there was no F4J at the time) and the leading child development consultants, as well as other leading stakeholders.

    The two core elements of the project were, 1) to introduce programmes to educate separated parents how to act in the best interests of their children, leading to Parenting Plans, and 2) compulsory mediation – which would have required new legislation. As Judge John Lenderman of Florida said, ‘I’m totally convinced mediation should be mandatory. Every judge that I’ve talked to around the United States says mandatory mediation is the way to go.’ Mr Justice Munby (as he then was)said, ‘Some will be disappointed – and I can understand why – that the Government‘s very recently announced pilot scheme proposals only encourage the use of mediation and do not make it mandatory.’

    As we all know, the project was hijacked and scuppered by Bruce Clark and Brian Kirby of CAFCASS and resulted – eventually – in the wholly inadequate reforms in the Children and Adoption Act 2006.

    There are, then, numerous proposals for reform which have widespread support, which involve some form of mandatory mediation, leading to binding parental agreements, backed up by access to a much revised non-adversarial and gender-neutral legal system when all else fails. They can be paid for out of savings made elsewhere, and staffed by existing personnel. They render arguments about open justice and anonymity irrelevant.

    Why not?

  6. I often think that I am in an unusual position being a social worker and a parent without care of their child, its been over 14 years ago since a private law battle but the consequences of the decisons go on and on…….

    I wish the Courts where more intouch with real life, they often dont seem to be. But saying that being a Judge must be a difficult job,possibly a thankless task like social work. Judge’s should work in Children’s Services offices for a least one week a year.

    Duty and Assessment/Intake Team
    Care Management/ LAC Teams
    Disabled Children’s Team
    Sixteen Plus Teams/ After Care
    YOT-
    Children’s Family Centre’s- if there are any left, after the disasters of Sure Start!

    and maybe CAFCASS who seem in a difficult situation, not enough Children’s Guardian’s/ welfare reporters……..

    Its good to hear that solicitors and others want to debate about the Court situation, with social workers, have you let BASW know?? just a thought.How many Court Users Groups have social workers in their ranks, frontline social workers, not just the managers……..

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